Common use of Third Tranche Clause in Contracts

Third Tranche. (i) Subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth below in this Section 1.1(d)), at the Third Tranche Closing (as defined in section 1.2(c)(i)), the Company shall issue and sell to each Purchaser, and each Purchaser, acting severally and not jointly, shall purchase from the Company, that number of shares of Series D Preferred Stock set forth opposite each such Purchaser’s name under the heading “Third Tranche Shares” on Exhibit A, at a purchase price per share equal to the Series D Price. Subject to the provisions of this Section 1.1(d), the aggregate number of shares of Series D Preferred Stock issued to the Purchasers at the Third Tranche Closing shall be 25,481,775 (such aggregate number of shares, subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split or other similar event that affects or involves the Series D Preferred Stock, being hereinafter referred to as the “Third Tranche Shares”) and the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be $14,999,999.85. (ii) The sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall be consummated only if (1) either the Board of Directors of the Company determines that the Milestones (as defined in Section 1.4 below) have been achieved or those Purchasers that hold at least seventy-five percent (75%) of the Tranche Shares issued and outstanding agree in writing to waive the requirement that the Milestones be achieved as a condition precedent to such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d), (2) the Company delivers a written notice to all of the Purchasers (the “Third Tranche Closing Notice”) stating that (A) the Board of Directors of the Company has determined that the Milestones have been achieved or that the requirement that the Milestones be achieved as a condition precedent to such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) has been waived in accordance with the provisions of the foregoing clause (1) of this Section 1.1(d)(ii) and (B) the Company desires to consummate such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d), and setting forth a proposed date for the Third Tranche Closing that is consistent with the applicable requirements of Section 1.1(d)(iii) below, (3) those Purchasers that hold at least seventy-five percent (75%) of the Tranche Shares issued and outstanding do not elect in writing, within ten (10) business days after the date of the Third Tranche Closing Notice, to abandon the consummation of the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) and (4) all other applicable conditions precedent set forth in this Agreement to the consummation of the Third Tranche Closing shall have been satisfied or properly waived in accordance with the terms of this Agreement. Upon request by any Purchaser, the Company shall promptly provide such Purchaser with reasonable evidence supporting achievement of the Milestones, as applicable, which evidence shall be subject to the confidentiality provisions set forth in Section 3.5 of the Investors’ Rights Agreement. (iii) Notwithstanding anything express or implied in this Section 1.1(d) or elsewhere in this Agreement to the contrary: (A) the Company shall send the Third Tranche Closing Notice at least fifteen (15) business days before the Third Tranche Closing and the Company shall not send the Third Tranche Closing Notice at any time during the Restricted Period; (B) the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not be consummated at any time during the Restricted Period and also shall not be consummated at any time prior to December 31, 2015 or after the fifteenth (15th) business day after September 30, 2017; (C) in the event that the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) is to be consummated at any time within thirty (30) days prior to the consummation of a Deemed Liquidation Event, each Purchaser shall have the right to make a Net Issue Election pursuant to which such Purchaser shall be issued pursuant to this Section 1.1(d), at the Third Tranche Closing, a smaller number of the Third Tranche Shares determined in accordance with such Net Issue Election and without having to make payment to the Company of any cash purchase price in connection with such smaller number of the Third Tranche Shares, in lieu of purchasing and paying the purchase price for the full number of the Third Tranche Shares that such Purchaser would otherwise have the right and obligation to purchase and pay for pursuant to this Section 1.1(d); and (D) the Company shall have no right or obligation to sell any shares of Series D Preferred Stock to a Purchaser pursuant to this Section 1.1(d), and such Purchaser shall have no right or obligation to purchase any shares of Series D Preferred Stock from the Company pursuant to this Section 1.1(d), if the Company has previously sold to such Purchaser, and such Purchaser has previously purchased from the Company, shares of Series D Preferred Stock pursuant to Section 2.1(b) hereof. In the event that the provisions of clause (D) of the immediately preceding sentence are applicable with respect to one or more Purchasers, then (1) the rights and obligations of the Purchasers to purchase Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof, (2) the rights and obligations of the Company to sell Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof and (3) the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be automatically reduced to reflect the reduction in the number of Third Tranche Shares. (iv) The rights and obligations of the Company and the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall automatically terminate on the earlier of (1) the sixteenth (16th) business day after September 30, 2017, (2) the consummation of a Deemed Liquidation Event, (3) the closing of the IPO and (4) the date on which all Purchasers have purchased shares of Series D Preferred Stock pursuant to, and in accordance with, Section 2.1(b) hereof. In addition, if one or more Purchasers is or are in material breach of any representation, warranty, covenant or provision under this Agreement that is applicable to such Purchaser or Purchasers (which material breach remains uncured for at least thirty (30) days after written notice thereof), then the obligation of the Company to consummate the sale of any number of the Third Tranche Shares to such Purchaser or Purchasers pursuant to this Section 1.1(d), and the right of such Purchaser or Purchasers to consummate the purchase of such number of the Third Tranche Shares from the Company pursuant to this Section 1.1(d), may be terminated by the Company by giving written notice of termination to the breaching Purchaser or Purchasers. Any termination pursuant to this Section 1.1(d)(iv) of the rights and/or obligations of the Company and/or the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not relieve or release any party to this Agreement from any material breach by such party of any representation, warranty, covenant or provision under this Agreement that is applicable to such party if and to the extent that such material breach occurred prior to such termination.

Third Tranche. (i) Subject At any time on or after the Closing Date but prior to the terms earlier to occur of (x) March 31, 2024 and conditions (y) the termination of this Agreement all unused Note Purchase Commitments and payment in full of all Obligations (includingother than contingent indemnification obligations for which no claim has been asserted) under the Note Documents, without limitationsubject to the written approval of Athyrium, the terms and conditions set forth below in this Section 1.1(d)), at Issuer may institute the Third Tranche Closing in an aggregate amount not to exceed ONE HUNDRED MILLION DOLLARS (as defined in section 1.2(c)(i$100,000,000)); provided, that: (a) the Company Issuer shall issue and sell to each Purchaser, and each Purchaser, acting severally and not jointly, shall purchase from have obtained commitments for the Company, that number of shares of Series D Preferred Stock set forth opposite each such Purchaser’s name under the heading “Third Tranche Shares” on Exhibit A, at a purchase price per share equal to the Series D Price. Subject to the provisions of this Section 1.1(d), the aggregate number of shares of Series D Preferred Stock issued to the Purchasers at the Third Tranche Closing shall be 25,481,775 (such aggregate number of shares, subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split or other similar event that affects or involves the Series D Preferred Stock, being hereinafter referred to as the “Third Tranche Shares”) and the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all amount of the Third Tranche Shares from existing Purchasers or other Persons reasonably acceptable to Athyrium, which Purchasers shall join in this Agreement pursuant to such agreements as are reasonably acceptable to Athyrium; (b) the institution of the Third Tranche shall be in a minimum aggregate principal amount of $14,999,999.85.[***] and integral multiples of $[***] in excess thereof; (i) no Default or Event of Default shall exist and be continuing at the time of such institution, (ii) The sale the use of proceeds for the Third Tranche shall be in accordance with Section 7.11 and (iii) the conditions precedent set forth in Section 5.02 shall have been satisfied prior to or contemporaneously with the purchase of the Third Tranche Shares Notes; (d) (i) the final maturity date with respect to the Third Tranche Notes shall be the Maturity Date, (ii) there shall be no scheduled principal amortization payments for the Third Tranche Notes (except, following the Amortization Trigger, as set forth in Section 2.05) and (iii) the interest rate, repayment premiums, exit fees and ticking fees for the Third Tranche shall be identical to the interest rate, repayment premiums, exit fees and ticking fees, as the case may be, for the First Tranche and the Second Tranche; (e) the Issuer shall have paid all fees and original issue discount required to be paid in connection therewith, including pursuant to this Section 1.1(dthe Fee Letters; (f) Schedule 2.01 shall be consummated only if (1) either deemed revised to reflect the Board of Directors commitments and commitment percentages of the Company determines that Third Tranche Note Purchasers, as set forth in the Milestones Third Tranche Joinder Agreement; (g) no Purchaser shall be obligated to participate in the Third Tranche, which decision shall be made in the sole discretion of each Purchaser; (h) the Third Tranche Purchasers, the Administrative Agent, Athyrium and the Credit Parties shall have entered into (i) the Third Tranche Joinder Agreement and (ii) such technical amendments to this Agreement as defined are necessary, in Section 1.4 below) have been achieved or those Purchasers that hold at least seventy-five percent (75%) the Administrative Agent’s reasonable discretion, to effect the inclusion of the Third Tranche Shares issued and outstanding agree in writing to waive the requirement that the Milestones be achieved herein; and (i) as a condition precedent to such sale and purchase institution of the Third Tranche Shares pursuant to this Section 1.1(d), (2) and the Company delivers a written notice to all of the Purchasers (the “Third Tranche Closing Notice”) stating that (A) the Board of Directors of the Company has determined that the Milestones have been achieved or that the requirement that the Milestones be achieved as a condition precedent to such sale and purchase effectiveness of the Third Tranche Shares pursuant Joinder Agreement, the Issuer shall have delivered to this Section 1.1(d) has been waived in accordance with the provisions Administrative Agent a certificate of each Credit Party dated as of the foregoing clause date of such institution and effectiveness (1in sufficient copies for each Purchaser) signed by a Responsible Officer of this Section 1.1(d)(iisuch Credit Party (i) certifying and attaching the resolutions adopted by such Credit Party approving or consenting to the Third Tranche, and (Bii) certifying that, before and after giving effect to the Company desires to consummate such sale and purchase incurrence of the Third Tranche Shares pursuant to this Section 1.1(d), Note Purchase Commitments (and setting forth a proposed date assuming for such purposes that the Third Tranche Closing that is consistent with the applicable requirements of Section 1.1(d)(iii) belowNotes Issuance Date has occurred), (3x) those Purchasers that hold at least seventy-five percent the representations and warranties contained in Article VI and the other Note Documents are true and correct in all material respects (75%and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the Tranche Shares issued and outstanding do not elect in writing, within ten (10) business days after the date of the Third Tranche Closing Noticesuch incurrence, to abandon the consummation of the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) and (4) all other applicable conditions precedent set forth in this Agreement to the consummation of the Third Tranche Closing shall have been satisfied or properly waived in accordance with the terms of this Agreement. Upon request by any Purchaser, the Company shall promptly provide such Purchaser with reasonable evidence supporting achievement of the Milestones, as applicable, which evidence shall be subject to the confidentiality provisions set forth in Section 3.5 of the Investors’ Rights Agreement. (iii) Notwithstanding anything express or implied in this Section 1.1(d) or elsewhere in this Agreement to the contrary: (A) the Company shall send the Third Tranche Closing Notice at least fifteen (15) business days before the Third Tranche Closing and the Company shall not send the Third Tranche Closing Notice at any time during the Restricted Period; (B) the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not be consummated at any time during the Restricted Period and also shall not be consummated at any time prior to December 31, 2015 or after the fifteenth (15th) business day after September 30, 2017; (C) in the event that the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) is to be consummated at any time within thirty (30) days prior to the consummation of a Deemed Liquidation Event, each Purchaser shall have the right to make a Net Issue Election pursuant to which such Purchaser shall be issued pursuant to this Section 1.1(d), at the Third Tranche Closing, a smaller number of the Third Tranche Shares determined in accordance with such Net Issue Election and without having to make payment to the Company of any cash purchase price in connection with such smaller number of the Third Tranche Shares, in lieu of purchasing and paying the purchase price for the full number of the Third Tranche Shares that such Purchaser would otherwise have the right and obligation to purchase and pay for pursuant to this Section 1.1(d); and (D) the Company shall have no right or obligation to sell any shares of Series D Preferred Stock to a Purchaser pursuant to this Section 1.1(d), and such Purchaser shall have no right or obligation to purchase any shares of Series D Preferred Stock from the Company pursuant to this Section 1.1(d), if the Company has previously sold to such Purchaser, and such Purchaser has previously purchased from the Company, shares of Series D Preferred Stock pursuant to Section 2.1(b) hereof. In the event that the provisions of clause (D) of the immediately preceding sentence are applicable with respect to one or more Purchasers, then (1) the rights and obligations of the Purchasers to purchase Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof, (2) the rights and obligations of the Company to sell Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof and (3) the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be automatically reduced to reflect the reduction in the number of Third Tranche Shares. (iv) The rights and obligations of the Company and the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall automatically terminate on the earlier of (1) the sixteenth (16th) business day after September 30, 2017, (2) the consummation of a Deemed Liquidation Event, (3) the closing of the IPO and (4) the date on which all Purchasers have purchased shares of Series D Preferred Stock pursuant to, and in accordance with, Section 2.1(b) hereof. In addition, if one or more Purchasers is or are in material breach of any representation, warranty, covenant or provision under this Agreement that is applicable to such Purchaser or Purchasers (which material breach remains uncured for at least thirty (30) days after written notice thereof), then the obligation of the Company to consummate the sale of any number of the Third Tranche Shares to such Purchaser or Purchasers pursuant to this Section 1.1(d), and the right of such Purchaser or Purchasers to consummate the purchase of such number of the Third Tranche Shares from the Company pursuant to this Section 1.1(d), may be terminated by the Company by giving written notice of termination to the breaching Purchaser or Purchasers. Any termination pursuant to this Section 1.1(d)(iv) of the rights and/or obligations of the Company and/or the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not relieve or release any party to this Agreement from any material breach by such party of any representation, warranty, covenant or provision under this Agreement that is applicable to such party if and except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material breach occurred prior respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such terminationearlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in clauses (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (y) no Default or Event of Default exists.